Vitthal Kisan Landge And Others vs Ashok Kondiram Gagare
2016 Latest Caselaw 3372 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   BENCH AT AURANGABAD




                                                                          
                            WRIT PETITION NO. 6495 OF 2016




                                                  
    1.      Vitthal S/o. Kisan Landge,
            Age 48 years, Occ. Agril.,




                                                 
    2.      Dileep S/o. Kisan Landge,
            Age 46 years, Occ. Agril.,

    3.      Sau. Shantabai W/o Nandkishor Borde,




                                        
            Age 50 years, Occ. Agril.,

    4.
                             
            Smt. Subhadrabai @ Babai Kisan Landge,
            Age 71 years, Occ. Agril.,
                            
            All R/o. Chari No.15, Landge Wasti,
            Rahata, Tq. Rahata,
            Dist. Ahmednagar.                                     ... Petitioners

                     Vs.
      


            Ashok S/o Kondiram Gagare,
   



            Age 56 years, Occu. Agril.,
            R/o. Bhagawatipur, Tq. Rahata,
            Dist. Ahmednagar.                                     ...Respondent





                                     ----
    Mr. Sushant V. Dixit, Advocate for the petitioners.
    Mr. Ajinkya P. Deshmukh for Mr. A.V. Hon, Advocate for the
    respondent.
                                     ----





                                       CORAM : SUNIL P. DESHMUKH, J.

DATE : 27-06-2016.

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard finally

with consent of the parties.

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2. This is defendants writ petition aggrieved by the order

of rejection of application lodged by them for appointment of court

commissioner.

3. Learned counsel for the petitioner contends that,

although, ostensibly the sale deed had been executed in favour of

respondent, the same is vacuous and is meant for facilitating

certain purpose. The transaction is not real and no actual

possession has

been

possession of the suit property.

                                      delivered.         The     petitioners        are

                                                       It was as such requested under
                                                                                            still   in
                            

exhibit-24 to appoint commissioner since no possession has been

parted with, based on the transaction contended by the respondent

to see this position, it would be necessary to appoint the

commissioner.

4. Regular Civil Suit no. 289 of 2015 has been instituted by

present respondents seeking injunction against the petitioners. The

suit property is claimed to have been purchased by respondent

under registered sale deed from present petitioners and further it is

being alleged that there is disturbance to the claimed possession of

respondents over the suit property and as such the suit. In the suit

the present petitioners have appeared and have filed their written

statement and say to the application for temporary injunction, the

matter is resting at the stage of hearing on interim relief

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application.

5. The trial court after hearing the parties has rejected the

request for appointment of commissioner, referring to various

judgments cited on behalf of the respondents holding that a court

commissioner cannot be appointed for collection of evidence or for

that matter to find out possession of parties.

6. Learned ig counsel for the plaintiff-respondent

opposed the request contending that this would tantamount to has

collection of evidence and further that the property has been sold

and the title has been passed to the respondent and the sale deed

contains recitals of delivery of possession.

7. Learned counsel for the petitioners refers to a couple of

judgments contending that the same would aid the cause under

exhibit-24. As far as the case taken from Vassant Crishna

Porobo V/s. Chief Secretary, Govt. of Goa reported In

MANU/MH/0707/2012 is concerned that appears to be on a different

factual background and has little relevance to the context of the

present petition. In the other case of Mohd. Hashim Ajmullah

Khan V/s. Vasiullah Nasibullah Khan and others reported in

2014 MLJ 451, the court had been considering the matter and order

passed by the trial court. With reference to certain documents,

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only with respect to ownership and without reference to the aspect

of possession. In the circumstances, the court had considered

appointment of the commissioner for looking into the aspect of

possession would be relevant.

8. In the present case, however, it is the suit by plaintiff

seeking injunction and primarily it is for him to establish his case.

In the circumstances, having regard to the stage at which the

application has been moved and order has been passed does not

warrant any interference. However, as the suit will proceed, at an

appropriate stage it is open for the defendants if they consider and

if the circumstances so require and are so considered, they may

make an attempt afresh. The writ petition is not being entertained

and is dismissed. Rule discharged.

(SUNIL P. DESHMUKH) JUDGE

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